Book Review: Seeking Accountability for the Unlawful Use of Force

Seeking Accountability for the Unlawful Use of Force, Leila Nadya Sadat ed., Cambridge University Press, 2018, 612 pages, £ 26.99

Classic understandings about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that are eroded at the peril of the entire world.

Leila Nadya Sadat, p. 556

Professor Leila Nadya Sadat

Had it been up to me I would have retitled Seeking Accountability for the Unlawful Use of Force (Seeking Accountability) to something like: The International Crime of Aggression: past failures, present shortcomings, and future possibilities. Even if you think you know all there is to know about criminalizing aggression as an international crime, you are bound to find this collection of articles exceptionally rewarding. And if you really want to treat yourself, read it cover to cover as it has been smartly organized and edited by Washington University Law School Professor Leila Nadya Sadat. Spoiler alert: Seeking Accountability is dense, packed with information and source material that provokes and stimulates – not a quick or effortless read.

Benjamin B. Ferencz
Donald M. Ferencz

Seeking Accountability has 20 chapters (excluding the foreword, preface, introduction, and epilogue). The introduction and epilogue are a son-father treat – Donald M. Ferencz and Benjamin B. Ferencz, credited by Sadat for helping in the book’s “conceptual framing, funding, and implementation” (p. xxxi). After reading the introduction, go to the epilogue before you embark on the nearly six hundred-page odyssey that lies ahead. Benjamin B. Ferencz, the only surviving member of Robert H. Jackson’s prosecution team at Nuremberg, inspires as he humbly recounts a slice of his life-long journey to outlaw aggression and his quest for the bright future he aspires. His parting words are inestimable: “Though my eyes be shut forever in an iron sleep, it is my fervent hope that new generations will see the kingdom of the law.” (p. 583)

Seeking Accountability is divided into four parts. Thematically, the chapters are selected and marshalled in a logical and coherent order. The authors are well-chosen, presenting their material in a consistent fashion and in accessible prose. Also, having footnotes as opposed to endnotes make the source material cited appreciatively accessible; some of us enjoy the frolic of delving into the footnotes as we read along.

Part I, Historic and Contemporary Perspectives on the Unlawful Use of Force, has six chapters.  It opens with the chapter by the late and much missed M. Cherif Bassiouni. The largest chapter in Seeking Accountability is a tour de force of a tour d’horizon – from the ancient past to the not-so-starry-eyed future. It is an ideal chapter to assign as mandatory reading in an international criminal law (ICL) class, or for anyone venturing into the meandering and depressing history of humanity’s attempts to criminalize aggression.

Beginning with the origins and differences of jus ad bellum and jus in bello, Bassiouni covers in broad-brush stokes some of what was discussed in the previous book review (The Internationalists), as well as the United Nations (UN) Charter, the various UN General Assembly resolutions, the efforts of the International Law Commission, the 1974 UN General Assembly Resolution 3314 in which aggression was defined, the 2005 World Summit endorsing the doctrine of responsibility to protect (R2P), the 2010 Conference in Kampala where States and non-States Parties to the Rome Statute gathered to define the crime of aggression as one of the four substantive international crimes prosecutable at the International Criminal Court (ICC), and much more. In between, Bassiouni, pulling no punches, covers a lot of ground contextually linking diplomatic history, international affairs, realpolitik, humanitarian interventions, and international law.

Professor M. Cherif Bassiouni (decd)

Bassiouni’s chapter is a rewarding read. Expressing his disappointment (and annoyance) of squandered opportunities, UN Security Council’s (UNSC) failures, obduracy of some of the permanent members of the UNSC and their short-sighted / geopolitically-driven (and Machiavellian) politically-expedient use of their veto prerogative or refusal to engage responsibly, remarkably, he ends on a hopeful note – expressing an enduring belief that despite the inevitabilities of statecraft realpolitik, solutions in addressing atrocities resulting from aggression are (as they have been) within reach.

The next two chapters cover the Nuremberg and Tokyo tribunals and their efforts in dealing with aggression (crime against peace) by William A. Schabas and Robert Cryer, respectively. Expectedly, neither disappoint. They provide a good primer, adding more detail and nuance to Bassiouni’s broad overview of these pioneering tribunals. The next chapter by Larry May is an illuminating exposé on ancient legal thought on just war, followed by Kirsten E. Sellars’ excellent chapter on the machinations behind the various efforts to cobble together an acceptable definition of aggression. This is another one of those chapters that a student of statecraft and the art of drafting legal instruments would find fascinating (I would also add this chapter to an obligatory reading list for both ICL and foreign affairs classes). Finally, Part I is rounded out by David M. Crane, who in broad terms (much like an opinion piece) reminds us that the old rules and old responses to protecting non-combatants need a re-think and perhaps a make-over if future challenges to unlawful use of force by non-state actors are to be met effectively.

Part II, Mechanisms for Restraining the Unlawful Use of Force and Enhancing Accountability, is divided into five chapters, effectively picking up from Part I, focusing on different topics that all relate to the unlawful use of force. In the first chapter Catherine Harwood and Larissa van den Herik give an overview on Commissions of Inquiry through time while also focusing on current actors who make extensive use of these commissions, like the Human Rights Council. They also make a compelling argument for how Commissions of Inquiry have the potential to hold accountable jus ad bellum actors. Douglas J. Pivnichny’s chapter focuses on the International Court of Justice (ICJ) and its interplay with the unlawful use of force. He talks in great detail about the numerous jurisdictional barriers the ICJ faces as a result of its Statute, but also acknowledging the numerous contributions the ICJ has made on the subject through its jurisprudence. Carrie McDougall gives a historical narrative concerning transnational terrorists and armed conflict with a special emphasis on the fight with ISIS in Syria/Iraq. Robin Geiβ analyzes how the case of Hassan v. the United Kingdom plays a seminal role in the convergence of international human rights law and the laws of armed conflict. Lastly, Sergey Sayapin gives a cautionary overview of the problems currently assaulting international law and postulates that if the trend continues, the current system will need to be overhauled to meet future challenges.

Part III, The Illegal Use of Force and the Prosecution of International Crimes, is divided into five chapters. Yoram Dinstein (author of the seminal text War, Aggression and Self-Defence) leads off, predictably, with an outstanding, cogent recitation of the crime of aggression under customary international law. The next chapter on the crime of aggression and the ICC by Jennifer Trahan provides a good overview (and lots of nitty-gritty insights) on the negotiations and shortcomings leading up to what eventually emerged from the Kampala Conference in 2010.

The next two chapters attempt to make the case of how the crime of aggression can be tried in all but the absence of formal charges. Both Terje Einarsen and Manuel J. Ventura respectively advocate prosecuting aggression through either other Article 5 core crimes (excluding aggression itself), or through other inhumane acts under crimes against humanity.

Einarsen proposes taking aggression into account within the ICC’s framework “as a whole, and in effect, if not formally, de facto, prosecuting aggression despite lack of explicit and direct de jure jurisdiction to investigate, indict, and convict persons with respect to the distinct crime of aggression” (pp. 338-39) based on the relevant gravity factor, the factual matrix, and as an aggravating sentencing factor (p. 344). Ventura builds on Benjamin B. Ferencz’s thesis that “the illegal use of (armed) force should be prosecuted as a crime against humanity, namely, other inhumane acts” (pp. 387-88), positing that in doing so it “would not be beholden to any of the problematic and uniquely restrictive clauses included in the Kampala Amendments of 2010 concerning aggression,” irrespective of any jurisdictional impediments or “whether both the victim State and the State of nationality of the accused are both State Parties to the Rome Statute, and that no ‘opt-out’ possibilities would be in play.” (pp. 420-21)

While I found their legal reasoning interesting, and although both were careful to couch their theses within the need of affording accused their fair trial rights (namely, being prosecuted for what is charged) and respect for not conflating jus ad bellum with jus in bello, as a defense lawyer, unsurprisingly, I found their thinking somewhat adventuristic.

A careful review of the indictments from the various international(ized) criminal tribunals and courts reveals that in the background section preceding the list of charges, there are lengthy narratives asserting which state(s) (and individuals) were responsible for initiating the conflict (waging an unjustified use of force, either as part of a joint criminal enterprise or state policy). These narratives are used to advance a theory of aggression that will ultimately become part of the prosecution’s case. The accused may have had nothing to do with any of the decisions that may have led to the alleged aggression as outlined by the prosecution, but nonetheless will need to address these assertions. Invariably, evidence is adduced by the prosecution from which findings of facts are made that address jus ad bellum issues. And while both the judgments and sentences are careful not to explicitly ascribe culpability for aggression or denote it as an aggravating factor, there is no telling how much these findings (which may have nothing to do with the charges for which the accused is tried) affect the judges’ decisions. Straightforwardly, through prosecutorial creativity, the crime of aggression effectively is being prosecuted (or at least certainly considered), though not in name.

Naturally, judges, when sentencing, are entitled to consider the overall conduct of an accused. Contextually, there is nothing wrong with this. That said, accused should only need to defend themselves against the charges – which means the prosecution should be held in check (as opposed to being given a blank check) to focus its case on the charges and not try to circumvent the charging document (as was the case in Lubanga, albeit in a different context – see my post here) by polluting the trial proceedings with non-essential or tangential evidence to satisfy its agenda of presumably making the “historical record” (often incorrectly referred to as “historical truths”), or, as Ventura suggests, creatively prosecuting aggression through crimes against humanity, even if doing so contravenes the letter and spirit of the 2010 Kampala Amendments. Stigmatizing a state from which the accused hails as having engaged in a crime of aggression, and implicitly affixing criminal responsibility for the crime of aggression on the accused, inappropriately (subliminally) influences the fact-finders to the detriment of the accused. In any event, Einarsen and Ventura offer engaging and worthwhile thoughts that ICC prosecutors and defense counsel should carefully scrutinize.

The final chapter in Part III by John Hagan and Anna Hanson deals with building a case in Iraq, mainly on the use of torture sanctioned by President George W. Bush. Though I am rather familiar with much what has been written about the enhanced interrogation techniques used by US interrogators (see my post against the confirmation of Gina Haspel to direct the CIA), there were lots of (shocking) details which came as a surprise. The narrative in building a case against high-ranking US civilian officials and military officers is as detailed as it is compelling. It inspired me to want to dig some more. John Bolton, the current US National Security Advisor (and President Donald J. Trump) would be well served by reading this chapter, especially after his recent so-called “major US policy shift speech” (diatribe) about the ICC (see my post here).

Part IV, Imagining a Better World, is divided into four chapters, and as the title reflects, invites us to look to the future. Perhaps because I prefer realism to idealism, I found one chapter in particular wishful and wanting. Federica D’Allessandra and Robert Heinsch start off with a thoughtful piece on rethinking the relationship between jus in bello and jus ad bellum. Considering the ground they cover, this chapter perhaps should have come earlier, either in Part II or after Dinstein’s chapter in Part III. David J. Scheffer and Angela Walker come next proposing a new paradigm for addressing humanitarian interventions (the lack thereof) in the face of intransigence of some of the permanent members of the UNSC. The solutions offered, in my view, on balance seem improbable, especially when considering the geopolitical climate amongst the Big Three (the US, China, and Russia). For example, their Responsibility Not to Veto (RN2V) proposal for R2P instances (pp. 503-504). Seriously? How likely is that the permanent members of the UNSC would voluntarily agree not to veto, especially given NATO’s supposed R2P intervention in Libya, which by credible accounts amounted to or was perceived by Russia and China as a pretext for regime change (see my post reviewing A World in Disarray: American Foreign Policy and the Crisis of the Old Order by Richard Haass). Not to mention NATO’s bombing campaign in Kosovo (see my post here for more).

Although there is nothing wrong with thinking outside the box, I was underwhelmed by the persuasiveness of their arguments and the plausibility of many of the solutions they offer. Also, their chapter may have benefited from their insight on what others have proposed and to some degree have considered as justifications for the lawful use of force. For instance, I would be interested in knowing their take on what I think is perhaps the most persuasive reasoning for the lawful use of force laid out by Sir Daniel Bethlehem, the former Foreign and Commonwealth Office Legal Adviser, in his article Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors. Be that as it may, on balance, Scheffer’s and Walker’s chapter is a perspicacious contribution to Seeking Accountability that merits reflection.

The last two chapters on the presumption of peace by Mary Ellen O’Connell and the urgent imperative of peace by Leila Nadya Sadat nicely round out and recap Seeking Accountability, while also sounding both a realistic and an optimistic tone. As Sadat sagaciously observes: “Classic understanding about the demarcation between war and peace are not just quixotic remnants of a bygone era, but core underpinnings of the international legal system that eroded at the peril of the world” (p. 556), while reminding us that “the first pillar of an ethical standard of global justice is whether a norm promotes the advancement of peace.” (p. 576)

Seeking Accountability for the Unlawful Use of Force is an excellent book that deserves the time and effort it will take to plow through it. Indeed, practitioners and ICL students will find much profit in re-reading many of the chapters and consulting parts of the text and referenced material. Hats off to Leila Nadya Sadat and her team of contributing authors, and a heartfelt thanks to Donald M. Ferencz and Benjamin B. Ferencz.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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